Robinson v. Morrison

• Decision Date: 29 June 1961
• Docket Number: 3 Div. 796
• Citation: Robinson v. Morrison, 133 So.2d 230, 272 Ala. 552 (Ala. 1961)
• Parties: Major ROBINSON, as Adm'r, v. Willis C. MORRISON.
• Court: Alabama Supreme Court

Page 230

133 So.2d 230

272 Ala. 552

Major ROBINSON, as Adm'r, v. Willis C. MORRISON.

3 Div. 796.

Supreme Court of Alabama.

June 29, 1961.

Rehearing Denied Sept. 21, 1961.

Knabe & Nachman, Montgomery, for appellant.

Thos. F. Parker and J. O. Sentell, Jr., Montgomery, for appellee.

LIVINGSTON, Chief Justice.

The appellant, Major Robinson, brought this action under Alabama's wrongful death statute, Title 7, Sec. 123, Code of Alabama 1940, seeking to recover punitive damages as administrator of the estate of Sallie Williams, deceased.

Sallie Williams was killed in a traffic accident which occurred on U. S. Highway 231 about three miles north of the city limits of Montgomery, Alabama, on April 20, 1956, at about 1:30 p. m. The highway is a divided one, and the southbound lane, scene of the occurrences leading to this suit, is about 23 1/2 feet wide. The road is straight, and slightly downhill to the southbound traveler, and there are no obstructions to visibility. On the date, and at the time in question, a car driven by one James Gray was stopped on the left side of the left lane of the southbound lane, waiting to turn left and cross into the northbound lane. He was at a paved, regular crossover, and his car, already angled into the crossover, occupied a space equal to one-half a car width, in the lane. Defendant Morrison was proceeding south in the right lane of the 'lane' at a speed of forty miles per hour, as he testified, or something less than fifty, as the motorist immediately behind him, witness Carter, testified. The deceased had left a store some distance from the west side of the highway and was standing on the right shoulder of the road, waiting to cross. There was no pedestrian crosswalk along this portion of the highway. Defendant and Carter testified that the deceased started to walk, then to run, across the road in the direction of the vehicle driven by Gray. Defendant was in the right lane but cut sharply to the left to avoid hitting the deceased, barely missing the car operated by Gray. Whether she hit the car or the car hit her was a disputed question of fact at the trial. The impact of the collision knocked her skidding back to a prone position where she lay, on the pavement, her head a few inches from the edge thereof. She died instantly. Her right foot and eight inches of her leg were severed and carried along the highway by the automobile. Defendant contended that deceased struck the right side of the car. There was no evidence of a collision on the front of the car except that the glass from the parking light was missing. The frame of the parking light gave no indication that it had been touched. Dents appeared on the front fender and continued along the side of the car. The radio aerial was broken off. The front windshield was cracked, as was the small glass window in the right door. The rearview mirror was gone. A fragment of bone was found a few inches to the west of the center line of the lane in which the collision occurred. The location of this piece of bone, certain marks on the pavement leading to the body of deceased, and the position of the body prompted a highway patrolman, witness Gillespie, to conclude that the point of collision was at the center of the 23 1/2 foot lane, or to the east of the center line. The exact point of impact was also a disputed question. Defendant and witness Carter testified that it was at or near the center line. Plaintiff's witness Gray testified that he saw the defendant's car in his rearview mirror as it cut over to the left or inside lane, heard the impact, and thought his own car had been hit. Plaintiff's witness Molton, a sixty-seven year old Negro man who was sitting on a bench outside the store the deceased had just left, stated that the deceased had taken but a couple of steps into the road before she was struck, but admitted that he didn't see the car until he 'heard the bump.'

This suit was tried on two counts alleging simple negligence and a third charging wanton misconduct. At the close of the plaintiff's evidence, the court granted a motion to exclude the evidence as to the wanton count, and later charged the jury that they must find for the defendant on that count. The case went to the jury on the two counts for simple negligence. There was a verdict and judgment for defendant.

The first assignment of error which we will consider concerns the trial court's action in excluding the evidence as to the wanton count.

The granting of a motion to exclude evidence is never proper in Alabama. Nevertheless, if the party against whom it is granted has failed to make out a prima facie case, his cause is not injured or prejudiced by the impropriety of the action, and such does not provide a ground for the reversal of the case on appeal.

If there is a scintilla, 'a mere 'gleam,' 'glimmer,' 'spark,' 'the least particle,' the 'smallest trace" on each element of the cause of action, it must be allowed to go to the jury, and taking it from them by excluding evidence or directing their verdict constitutes reversible error. Ex parte Grimmett, 228 Ala. 1, 152 So. 263; Alabama Great Southern R. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d 1190.

In ascertaining whether there is a scintilla of evidence on each element of the cause of action, the evidence for the plaintiff must be viewed in its most favorable light. Godfrey v. Vinson, 215 Ala. 166, 110 So. 13; Jack Cole, Inc., v. Walker, 240 Ala. 683, 200 So. 768.

Smith v. Roland, 243 Ala. 400, 10 So.2d 367, 369, provides a correct statement of the nature of wanton misconduct when it quotes 5 Mayfield's Digest, § 6, p. 711, as follows:

"Before one can be convicted of wantonness, the facts must show that he was conscious of his conduct and conscious from his knowledge of existing conditions that injury would likely or probably result from his conduct, that with reckless indifference to consequences, he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury. * * *"

We believe from the fact that defendant swerved his vehicle in an effort to avoid hitting the deceased effectively negates the hypothesis that he acted with a wanton disregard for the welfare of others. If, on the other hand, the testimony of Molton be accepted as fact, it would seem that in the short time it takes to make one or two steps, the operator of an automobile traveling forty or fifty miles per hour (58 to 73 feet per second) would lack the opportunity to develop a consciousness of existing conditions and formulate the reckless indifference which is an element of wantonness. Under either version of the facts, it cannot reasonably be inferred that defendant conducted himself with a disregard for the consequences of his acts amounting to wantonness. The learned trial court, therefore, did not err in granting the motion to exclude evidence relating to wanton misconduct, and the giving of the general charge as to the wanton count. See Salter v. Carlisle, 206 Ala. 163, 90 So. 283; Johnson v. King, 260 Ala. 497, 71 So.2d 60; Johnston v. Warrant Warehouse Co., 211 Ala. 165, 99 So. 920.

Appellant next contends that reversible error was committed when the trial court refused to admit proffered evidence of an implied admission. He desired to show that, after defendant had come back to the crossover and said, 'I wouldn't have hit her for nothing in the world,' witness Gray said to him, 'You couldn't have missed her going as fast as you were,' and the defendant did not reply.

The statement by Gray, taken alone, is hearsay and of no probative value. Such statements are sometimes admitted, where it is sought to be shown that the conduct of one hearing the statement is such that he is taken to have acquiesced to the truth of it. Kennedy v. State, 39 Ala.App. 676, 107 So.2d 913, 917.

Four Wigmore on Evidence, 3rd Edition, § 1071, p. 70, says that the rule grew up that anything said in a party's presence was receivable against him as an admission, and that the effort of the courts was to dislodge the absolutism of the rule. He concludes with the following statement, quoted with approval in Kennedy v. State, supra:

'* * * It would seem to be better to rule at least that any statement made in the party's presence and hearing is receivable, unless he can show that he lacked either the opportunity or the motive to deny its correctness; thus placing upon the opponent of the evidence the burden of showing to the judge its impropriety. But the burden is in practice generally left upon the proponent to show that the requisite conditions existed; * * *' citing inter alia Raymond v. State, 154 Ala. 1, 45 So. 895. (Emphasis supplied.)

We agree with the correctness of the italicized statement, and approve of it in principle. Evidence of this variety is, at best, of doubtful value. The likelihood of a protestation is always balanced against the urge to avoid a fruitless disputation or the determination to refuse the accusation the credence of a reply. The ultimate test of the weight to be accorded evidence of implied admissions is, of course, administered by the trier of the facts. The legal problem is: What must be shown, in the way of conditions and surroundings, in order to lay a proper predicate? In the instant case, the court refused to admit Gray's testimony of his own statement, commenting that it was that of a bystander and not a person involved. Upon this set of facts, we are unable to hold that the trial court committed reversible error in so ruling. There was no offer to show, in addition to his failure to reply, that the defendant's demeanor was one from which the jury could properly infer acquiescence. Certainly the proponent of evidence of an implied admission need not go so far as to establish the garrulous nature of the allegedly acquiescing party. But some predicate must be laid. Pack & Brother v. Ryan, 110 Ala. 336, 17 So. 733, 734, states:

'The rule for the...